The Oriental Insurance Co Ltd vs Smt P Suma
2023 Latest Caselaw 133 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 3RD DAY OF JANUARY, 2023

                           BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.7859/2016 (MV-I)

BETWEEN:

THE ORIENTAL INSURANCE CO. LTD.,
MUSLIM ORPHANAGE BUILDING,
T.P.HUB, SARASWATHIPURAM,
MYSURU,
REPRESENTED BY REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
NO.44/45, RESIDENCY ROAD,
BENGALURU - 560 025,
BY ITS DULY CONSTITUTED ATTORNEY.             ... APPELLANT

            (BY SRI RAVISHANKAR C.R, ADVOCATE)

AND:

1.     SMT. P. SUMA
       AGED ABOUT 37 YEARS,
       W/O SRI HARISH,
       2ND 'A' CROSS, 4TH MAIN,
       AKSHATHA, V.V.MOHALLA,
       MYSURU-570 002.

2.     JAGADGURU SRI SRI SHIVARATHRI
       DESHIKENDRA MAHASWAMIGALU,
       JSS MAHAVIDYAPEETA, JSS CIRCLE,
       MYSURU-570 023.                    ... RESPONDENTS

       (BY SRI VEERABHADRASWAMY, ADVOCATE FOR R2;
                R1 SERVED & UNREPRESENTED)
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     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:20.02.2016
PASSED IN MVC NO.904/13 ON THE FILE OF THE JUDGE,
ADDITIONAL COURT OF SMALL CAUSES, MYSURU, AWARDING
COMPENSATION OF RS.2,04,500/- WITH INTEREST AT 6% P.A.,
FROM THE DATE OF PETITION TILL ITS REALIZATION.

     THIS M.F.A., COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Heard the learned counsel appearing for the appellant-

Insurance Company and the learned counsel appearing for

respondent No.2-owner. Respondent No.1-claimant was served

and unrepresented.

2. This appeal is filed challenging the judgment and

award dated 20.02.2016 passed in M.V.C.No.904/2013 on the

file of the Motor Accident Claims Tribunal at Mysuru ('the

Tribunal' for short).

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case of the claimant before

the Tribunal is that on 27.11.2009 at about 10:30 a.m, when the

claimant was proceeded in her Scooty bearing registration

No.KA-09-EN-2912 to go to Agriculture Office, opposite to B.M.

Hospital, when she was so proceeding in B.N. Rao Bahaddur

Institute gate, Hunsur Double Road, at that time, a car bearing

registration No.KA-55-N-0178 driven by its driver in a rash and

negligent manner with high speed and dashed against the

claimant, as a result, she fell down and sustained the injuries.

Immediately, she was shifted to B.M. Hospital, Mysuru for

treatement and she was in ICU for a period of 8 days, at that

time, she was 7 months pregnant. Due to fracture of clavicle

bone, the Doctors applied strapping and blood was oozing from

ears. She continued the treatment and she was working as

Senior typist at Agricultural Office and getting a salary of

Rs.20,000/- per month. Due to accidental injuries, she had

spent huge amount for treatment and the vehicle belongs to

respondent No.1 and respondent No.2 is the Insurer. Hence,

claimed the compensation. Respondent No.2 has appeared

through the counsel and filed the written statement denying the

contentions of the claimant. It is also the contention that the

vehicle bearing registration No.KA-55-M-0178 was insured with

the Insurance Company and not vehicle bearing registration

No.KA-55-N-0178 and the vehicle has been implicated.

5. The claimant in order to substantiate her claim, she

examined himself as P.W.1 and got marked the documents as

Exs.P1 to P21. On the other hand, the respondent - Insurance

Company has examined one witness as R.W.1 and got marked

the documents as Exs.R1 to R5.

6. The Tribunal after considering both oral and

documentary evidence available on record, allowed the claim

petition in part and granted compensation of Rs.2,04,500/- with

interest at the rate of 6% p.a., from the date of petition till its

realization and fastened the liability on respondent Nos.1 and 2.

Hence, the present appeal is filed by the Insurance Company.

7. The main contention of the learned counsel

appearing for the appellant - Insurance Company in this appeal

is that the Tribunal has committed an error in not noticing the

fact that the Car bearing registration No.KA-55-N-0178 is

involved in the accident and in all the police records, the same

number is mentioned and no policy is issued in respect of the

said vehicle. The only policy issued in respect of the vehicle

bearing registration No.KA-55-M-0178, the same has not been

considered by the Tribunal. The learned counsel also would

submit that the Insurance Company also examined one witness

as R.W.1 and his evidence is very clear that the vehicle involved

in the accident is KA-55-N-0178 and not KA-55-M-0178. Merely

because the claimant has filed an application to amend the

vehicle number that too also after leading the evidence cannot

be a ground to fasten the liability on the Insurance Company.

The very involvement of the vehicle in the accident is doubtful

and the burden is on the claimant to prove that the vehicle KA-

55-M-0178 was involved in the accident. The Tribunal failed to

take note of all these materials available on record and

committed an error in fastening the liability on the Insurance

Company. Hence, it requires an interference of this Court.

8. Per contra, the learned counsel appearing for the

respondent - owner would vehemently contend that there was a

typographical error in mentioning the vehicle number as KA-55-

N-0178 instead of KA-55-M-0178. The learned counsel also

would contend that the accident was occurred on 27.11.2009

and on the same day, a complaint was given and though

mistakenly the vehicle number was mentioned as 'N' instead of

'M', the same cannot be a ground. The learned counsel also

would submit that the Tribunal considered the material on

record, particularly, while considering issue No.1; it has given

the reasoning that only a typographical error was committed and

the same cannot be a ground. The Tribunal even in paragraph

No.19, discussed with regard to the involvement of the vehicle in

the accident and also taken note of the fact that respondent

No.1 vehicle was duly insured with respondent No.2 and the

respondent No.1 only got released the very same vehicle after

the accident. The learned counsel also would submit that the

driver of the vehicle also pleaded guilty and paid the fine amount

and the Insurance Company also issued the notice when the

claim was made against the owner. When such materials are

available before the Court, the Tribunal has not committed any

error and no grounds are made out to set aside the judgment

and award of the Tribunal.

9. Having heard the arguments of the respective

counsel and on perusal of the materials available on record, the

points that would arise for consideration of this Court are:

(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company to pay the compensation amount?

(ii) What order?

Point No.(i):

10. Having heard the respective counsel and on perusal

of the material available on record, the accident was occurred on

27.11.2009 and in the claim petition, the time of accident was

mentioned as 10:30 a.m. No doubt, in the claim petition vehicle

number was mentioned as KA-55-N-0178. In the written

statement, the Insurance Company in paragraph No.6

mentioned the vehicle number as KA-55-N-0178. However, the

same is subsequently amended as KA-55-M-0178. Having

perused the written statement, no where specific defense was

taken that this vehicle was not involved in the accident and no

defense of false implication was taken in the written statement.

Only the contention was taken that without prejudice to the

contentions, the liability is subject to the terms and conditions of

the policy and also the driver was having a valid driving license.

No doubt, the Insurance Company has examined one witness as

R.W.1. R.W.1, in his evidence, he reiterated the issuance of

policy in respect of the vehicle No.KA-55-N-0178 and also the

vehicle belongs to the owner - respondent No.1 before the

Tribunal. But only the contention was taken that in all the

documents i.e., police records, FIR, charge-sheet, the vehicle

number is mentioned as KA-55-N-0178. In the affidavit also,

nothing is stated that there was no any Insurance in respect of

the vehicle bearing No.KA-55-N-0178 and it is only an after

thought the vehicle was implicated.

11. Having considered the material available on record,

no doubt, in the claim petition as well as in the Police records,

the vehicle number is mentioned as KA-55-N-0178. In order to

prove the factum that the vehicle was falsely implicated, there is

no any pleading and a specific defense in the written statement

and also in the affidavit of R.W.1 only it is mentioned.

Throughout in all the criminal case records, the vehicle number

is mentioned as KA-55-N-0178. Even the Investigating Officer is

also not been examined by the Insurance Company to prove the

fact that the vehicle has been falsely implicated in the case. The

very contention of the learned counsel appearing for the

Insurance Company is that after thought only this vehicle has

been implicated and the same is not supported by any oral and

documentary evidence available on record and even also there

was no any pleadings in the written statement specifically

contending that this vehicle was not insured with the Insurance

Company.

12. The learned counsel appearing for the respondent -

owner also brought to the notice of this Court that the very

driver of the particular vehicle which was insured with the

second respondent pleaded guilty. Apart from that, the learned

counsel also brought to the notice of this Court that the

Insurance Company itself has given notice to the owner of the

vehicle mentioning the very same vehicle and if this vehicle was

not involved in the accident, the Insurance Company ought to

have collected the material and produced the documents of other

vehicle, which is mentioned as KA-55-N-0178. Merely because

of the typographical error crept in while mentioning the vehicle

number in the complaint itself, which has been carried in all the

police records, cannot be a ground to come to other conclusion.

The fact that the vehicle bearing No.KA-55-M-0178 owned by

respondent No.1 was insured with the second respondent is not

in dispute; the same has been taken note of by the Tribunal

while considering issue No.1 as well as in paragraph No.19 of the

judgment the Tribunal discussed the same. Hence, I do not find

any force in the contention of the learned counsel appearing for

the Insurance Company that the vehicle has been duplicated;

the same ought to have been supported by pleadings as well as

evidence. In the absence of any specific pleadings and the

evidence, the very contention of the learned counsel appearing

for the Insurance Company cannot be accepted. Hence, I answer

point No.(i) as negative.

Point No.(ii):

13. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is dismissed.

(ii) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith.

(iii) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

SD/-

JUDGE

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